1.The
family is the natural and basic unit of societies and must be
respected and protected by the state.Consequently the state shall recognize and respect the
various forms of indigenous family, marriage, family name and
filiation.

In determining the child's best interest in matters relating to the
protection and adoption of children of members of indigenous
peoples, and in matters of breaking of ties and other similar
circumstances, consideration shall be given by courts and other
relevant institutions to the of the peoples, including individual,
family and community views.

I.INTERNATIONAL AUTHORITIES AND PRECEDENTS

1.American Convention on Human Rights (OAS 1969)

Article 17: (1) “The family is
the natural and fundamental group unit of society and is entitled to
protection by society and the state. (2) The right of men and women of
marriageable age to marry and to raise a family shall be recognized, if they
meet the conditions required by domestic laws...(4) In case of dissolution,
provision shall be made for the necessary protection of any children solely
on the basis of their own best interests.”

Article 18: “Every person has
the right to a given name and to the surnames of his parents or that of one
of them.”

Article 19: “Every minor child
has the right to the measures of protection required by his condition as a
minor on the part of his family, society, and the state.”

2.American Declaration on the Rights and Duties of Man (OAS 1948)

Article VI: “Every person has
the right to establish a family, the basic element of society, and to
receive protection therefore.”

3.Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social And Cultural Rights (OAS 1988)

Article
15: Right to the Formation and the Protection of Families.

1."The family is
the natural and fundamental element of society and ought to be protected by
the State, which should see to the improvement of its spiritual and material
conditions."

4.International
Covenant on Civil and Political Rights (UN 1966)

Article 17: “No one shall be
subjected to arbitrary or unlawful interference with his privacy, family,
home.”

Article 23 (1): “The family is
the natural and fundamental group unit of society and is entitled to
protection by society and the State.”

Article 23(2): “The right of
men and women of marriageable age to marry and to found a family shall be
recognized.”

Article 23(4): “In the case of
dissolution [of marriage], provision shall be made for the necessary
protection of any children.”

5.International
Covenant on Economic, Social and Cultural Rights (UN 1966)

Article 10(1): …“The States
Parties to the present Covenant recognize that: The widest possible
protection and assistance should be accorded to the family, which is the
natural and fundamental group unit of society”...

Article
10(3): “Special measures of protection and assistance should be taken on
behalf of all children and young persons without any discrimination for
reasons of parentage or other conditions.”

6.Convention on the
Rights of the Child (UN 1989)

Article 3(1): “In all actions
concerning children the best interest of the child shall be a primary
consideration.“

Article 5: “State Parties shall
respect the responsibilities, rights, and duties of parents or, where
applicable, the members of the extended family or community as provided for
by local custom, legal guardians or other persons legally responsible for
the child, to provide, in a manner consistent with the evolving capacities
of the child, appropriate direction and guidance in the exercise by the
child of the rights recognized the present Convention.”

7.Universal Declaration
of Human Rights (UN 1948)

Article 16(1)(3): “Men and
women of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family.They are entitled to equal rights as to marriage, during marriage and
at its dissolution...The family is the natural and fundamental group unit of
society and is entitled to protection by society and the State.”

Article 25(2): “Motherhood and
childhood are entitled to special care and assistance."

8.African Charter on
Human and Peoples’ Rights (Banjul Charter 1981)

Article 18(1)(2): “The family
shall be the natural unity and basis of society.It shall be protected by the State which shall take care of
its physical health and moral.The
State shall have the duty to assist the family which is the custodian of
morals and traditional values recognized by the community.”

9.European Convention for the Protection of Human Rights and
Fundamental Freedoms (ROME 1950)

Article
8(1): “Everyone has the right to respect for his private and family life,
his home and his correspondence.”

10.Treaty on Central American Social Integration, signed by the
governments of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and
Panama, Cerro Verde, Republic of El Salvador (March 30, 1995)

"Principles: The States
Parties to the present Treaty will act in accordance with the following

principles: The view of family as
the essential nucleus of society and focus of social policy."

11.Copenhagen Declaration on Social Development and Programme of Action
of the World Summit for Social Development (Copenhagen, Denmark, March 6-12,
1995)

Annex II:Programme of Action of the World Summit for Social Development
Content.

Chapter II. Eradication of
Poverty.

Para. D(39): "Particular
efforts should be made to protect children and youth by: (g) Addressing the
special needs of indigenous children and their families, particularly those
living in poor areas, enabling them to benefit adequately from economic and
social development programmes, with full respect for their cultures,
languages and traditions;."

12.Program of Immediate Actions Derived from the Declaration of San
Salvador II for the Investment in Human Capital signedby signed the Presidents of Costa Rica, El Salvador, Guatemala,
Honduras, Nicaragua, and Panama and the Prime Minister of Belize, El Costa
Verde, Republic of El Salvador (March 30, 1995)

"To elaborate a proposal for
bringing up to date and harmonizing national legislation regarding the
family in the new context of protection and promotion of family
rights."

“The government of Canada
acknowledge a fiduciary responsibility to support Aboriginal nations and
their communities in restoring Aboriginal families to a state of health and
wholeness.”

3.2.10

“Federal, provincial and
territorial governments promptly acknowledge that the field of family law is
generally a core area of Aboriginal self-governing jurisdiction, in which
Aboriginal nations can undertake self-starting initiatives without prior
federal, provincial or territorial agreements.”

3.2.11

“Federal, provincial and
territorial governments acknowledge the validity of Aboriginal customary law
in areas of family law, such as marriage, divorce, child custody and
adoption, and amend their legislation accordingly.”

§1901:
acknowledging failure of States in child custody proceedings “to recognize
the essential tribal relations of Indian people and the cultural and social
standards prevailing in Indian communities and families.”

§1902: “it is the policy of
this Nation to protect the best interest of Indian children and to promote
the stability and security of Indian tribes and families.”

§1911(a)(b): recognizing
exclusive jurisdiction of tribal courts to indigenous child custody
proceedings and obligation of a State court to transfer such cases to tribal
jurisdiction (some exceptions to both) and

§1911(c): giving Indian
custodian “right to intervene at any point” in a child custody
proceeding.

§1911(d): the courts throughout
the United States “shall give full faith and credit to the public acts,
records, and judicial proceedings of any Indian tribe applicable to Indian
child custody proceedings.”

§1912(a): duty of a State court
in involuntary custody proceeding of indigenous child to “notify the
parent or Indian custodian and the Indian child’s tribe...”

§1912(f): establishing high
standards before the termination of parental rights or the foster placement
of an Indian child can be completed

§1915: “In any adoptive
placement of an Indian child under State law, a preference shall be given,
in the absence of good cause to the contrary, to a placement with (1) a
member of the child’s extended family[”as defined by the law or custom of the Indian child’s tribe”
(§1902(2))]; (2) other members of the Indian child’s tribe; or (3) other
Indian families.”

25 CFR Pt. 23.3: “The policy of
the Act and of these regulations is to protect Indian children from
arbitrary removal from their families and tribal affiliations by
establishing procedures to insure that measures to prevent the breakup of
Indian families are followed in child custody proceedings. This will insure
protection of the best interests of Indian children and Indian families by
providing assistance and funding to Indian tribes and Indian organizations
in the operation of child and family service programs which reflect the
unique values of Indian culture and promote the stability and security of
Indian families.”